This blog answers common questions about criminal law and discusses recent events from the perspective of a criminal lawyer – e.g., why more bankers are not indicted; what to do if you are arrested; and so on.

Do You Have the Right to Remain Silent?

For many years in nearly all TV cop shows, the police read the Miranda warnings to the people they arrest. Despite the warnings, they talk. After all, it wouldn't make for very good TV if the suspects asserted their rights much. So usually they talk or provide absurd alibis or excuses that lead to the next scene. But in real life, after the police read the Miranda warnings ("You have the right to remain silent. Anything you say can be used against you . .") what does a person need to do to assert his or her rights? If they just remain silent, is that enough? Recently the U.S. Supreme Court ruled that refusing to talk is not a sufficient assertion of the right to remain silent..

It seems absurd. For what must a person do to exercise his right to remain silent beyond actually remaining silent? But lets look at the facts of the case--Berghuis v. Thompkins. The defendant, Van Thompkins, was arrested for murder at 1:30 p.m., taken to an 8x10 interrogation room and properly read all his Miranda rights. During the next three hours, Thompkins was mostly silent in the face of police questioning, answering some questions 'yes' or 'no' or nodding his head. At no time did he request a lawyer or say anything such as 'I wish to remain silent.' In the last 15 minutes, the police asked him: Do you believe in God?” He said “Yes,” as his eyes “welled up with tears.” Eventually he was asked, “Do you pray to God to forgive you for shooting that boy down?” He answered, "Yes." Which was all the prosecution needed..

Before the U.S. Supremes accepted this case, a federal Court of Appeals ruled that: “persistent silence for nearly three hours in response to questioning and repeated invitations to tell his side of the story offered a clear and unequivocal message to the officers" that he did not wish to waive his rights. Moreover, the police never asked for an express waiver of the Miranda rights. In a close 5-4 decision, the Supremes reversed, holding that: "Thompkins did not say that he wanted to remain silent or that he did not want to talk with the police. Had he made either of these simple, unambiguous statements, he would have invoked his ‘right to cut off questioning.’ Here he did neither, so he did not invoke his right to remain silent." The clear message is that an arrested person must say something such as, "I don't want to talk," or "I wish to remain silent." After such an assertion, then the law protects a person from repeated interrogation or other attempts to get around his constitutional rights..

Requesting a lawyer provides even more protection of the arrested person's rights. Unless and until the police get an attorney to the scene of the interrogation, they cannot resume questioning. Yet, with the Court's latest decision, the door to police persistence is further opened. The newest Justice--Sotomayor--writing the dissenting opinion, notes that the majority decision: "invites police to question a suspect at length—notwithstanding his persistent refusal to answer questions—in the hope of eventually obtaining a single inculpatory response." Silence alone, then, does not prevent the police from trying every interrogation trick in the book, from appealing to religion (as with Thompkins), or to motherhood, or perhaps using a ruse or a lie such as your pal says 'you did it..'

Our constitutional rights not to incriminate ourselves (5th Amendment) and to counsel (6th Amendment) are precious, but they do not protect us when they lie dormant. If you wish to assert your rights, you must say it. And you must say it loudly and in no uncertain terms. If you ask a question like "Do I need a lawyer?" it will not necessarily be answered by the police because they don't have to. If you are in doubt, you probably do need a lawyer, so make your demand loud and clear..